Moon v. Rayapati et al (INMATE2)
ORDER, JUDGMENT and DECREE of the court that: (1) Mr. Moon's 128 objection is OVERRULED; (2) the 120 REPORT AND RECOMMENDATION is ADOPTED; (3) the motions for summary judgment 24 , 26 , 33 , 113 filed by Defs PHS, Inc., Dr. SamuelRayapa ti, Dr. Travis Miers, Dr. Marvin West, Dr. William Shirley, Nurse Anthonette Marsh and Nurse Nettie Burk are GRANTED to the extent that the claims against these Defs are DISMISSED without prejudice, in accordance with theprovisions of 42 U.S.C. § ; 1997e(a), for failure of Mr. Moon to exhaust an available administrative remedy; (4) the motions for summary judgment 10 and 105 filed by Defs Commissioner Richard Allen, Associate Commissioner Ruth Naglich, Warden J.C. Giles, Captain Larry Mon k and Sergeant Sherwin Carter are GRANTED and Mr. Monks claims against these Defendants are DISMISSED with prejudice; (5) the costs of this proceeding are TAXED against Mr. Moon for which let execution issue. Signed by Honorable William Keith Watkins on 9/29/08. (djy, )
IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION J A M E S CHARLEY MOON, #212 228, P l a in tif f , v. S A M U E L RAYAPATI, M.D., et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) ORDER O n August 11, 2008, the Magistrate Judge filed a Recommendation (Doc. # 120) that P la in t if f James Moon's ("Mr. Moon") 42 U.S.C. § 1983 ("§ 1983") claims, alleging in a d e q u ate medical and dental care, be dismissed without prejudice for failure of Mr. Moon to exhaust an available administrative remedy and that, as to the remaining § 1983 claims, D e f en d a n ts ' motions for summary judgment be granted. Having received an extension of tim e to file objections to the Recommendation (Doc. # 123), and another extension to comply w ith Federal Rule of Civil Procedure 11's requirement that he sign his objections (Doc. # 126), Mr. Moon timely filed his objections on September 25, 2008. (Doc. # 128.) M r. Moon's objections can be organized into three categories. First, Mr. Moon c h a llen g e s certain matters related to the discovery phase of this case and the Magistrate J u d g e 's rulings. Contrary to Mr. Moon's assertion (Doc. # 128 at 3), the Magistrate Judge ru le d on all of Mr. Moon's motions pertaining to discovery requests. (See, e.g., Docs. # 15, 3 2 , 39, 63, 66 & 68.) In particular, as to the Order entered on October 10, 2007 (Doc. # 68),
C A S E NO. 2:06-CV-384-WKW (WO)
th e Magistrate Judge did not "postpone a ruling until a later date" (Doc. # 128 at 3), but, ra th e r, he denied the motion "subject to reconsideration pending [Mr. Moon's] compliance w ith the directives outline[d] . . . regarding issuance of a subpoena to a non-party." (Id.) Mr. M o o n has not pointed to any entry in the record which reflects that he complied with the M ag istrate Judge's directives. Moreover, Mr. Moon did not object to the Magistrate Judge's d isc o v e ry rulings at the time the orders were entered. Not only are his present objections to tho se orders untimely, but Mr. Moon also fails to demonstrate that the Magistrate Judge's ru lin g s on these pretrial matters are either clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A). Moreover, Mr. Moon's request "for relief" pursuant to Rule 56(f) of the F e d e ra l Rules of Civil Procedure (Doc. # 128 at 16) is untimely and, in any event, is not a c c o m p an ie d by an affidavit setting forth his reasons for needing further discovery as c o n te m p la te d by Rule 56(f). See Fed. R. Civ. P. 56(f). S econd , Mr. Moon reasserts that the administrative remedies were ineffectual and that, c o n se q u e n tly, he exhausted all remedies available to him. The court finds, however, that the M a g is tra te Judge correctly rejected Mr. Moon's subjective assertions, finding them u n s u p p o r te d by objective evidence. (Doc. # 120 at 11-12.) Moreover, as accurately d i sc u s s e d by the Magistrate Judge, exhaustion requires proper exhaustion, and Mr. Moon c a n n o t replace the established procedures with his own methods and devices. (Id. at 9-11.) F in a lly, as to Mr. Moon's exhaustion argument, the majority of exhibits filed in support of h i s objections consist of information already a part of the record. Some of the exhibits,
h o w e v e r , purport to be grievances and grievance appeals which he allegedly submitted to h e a lth c a re personnel after his transfer to Staton Correctional Facility. (See Doc. # 81.) The latte r documents, though, are not pertinent to the claims presented in Mr. Moon's complaint. T h ird , Mr. Moon challenges the Magistrate Judge's recommended disposition of his E ig h th Amendment claim predicated on the denial of an adequate supply of toothpaste and o th e r hygiene products. The court, however, finds that the Magistrate Judge correctly a n a lyz e d the claim as presented to him by Mr. Moon in his complaint and summary judgment re sp o n s e (Doc. # 42). (Doc. # 120 at 20-22.) To the extent that Mr. Moon seeks to raise new th e o rie s of liability in his objections, the court rejects those attempts. See Gilmour v. Gates, M c D o n a ld & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) ("A plaintiff may not amend her c o m p la in t through argument in a brief opposing summary judgment."). Bottom line, having conducted an independent and de novo review, the court finds th a t Mr. Moon's objections fail to undermine the proposed findings and recommendations o f the Magistrate Judge. Mr. Moon simply has failed to carry his burden to defeat
D efendants' properly supported motions for summary judgment; he has not demonstrated that a genuine issue of material fact exists for trial on any of his claims. Accordingly, it is the ORDER, JUDGMENT and DECREE of the court that: 1. 2. M r. Moon's Objection (Doc. # 128) is OVERRULED. T h e Magistrate Judge's Recommendation (Doc. # 120) is ADOPTED.
T h e motions for summary judgment filed by Defendants PHS, Inc., Dr. Samuel
R a ya p a t i, Dr. Travis Miers, Dr. Marvin West, Dr. William Shirley, Nurse Anthonette Marsh a n d Nurse Nettie Burk (Docs. # 24, 26, 33, 113) are GRANTED to the extent that the claims a g a in s t these Defendants are DISMISSED without prejudice, in accordance with the p ro v is io n s of 42 U.S.C. § 1997e(a), for failure of Mr. Moon to exhaust an available a d m in is tra tiv e remedy. 4. T h e motions for summary judgment filed by Defendants Commissioner
R icha rd Allen, Associate Commissioner Ruth Naglich, Warden J.C. Giles, Captain Larry M o n k and Sergeant Sherwin Carter (Docs. # 10, 105) are GRANTED and Mr. Monk's claims a g a in s t these Defendants are DISMISSED with prejudice. 5. T h e costs of this proceeding are TAXED against Mr. Moon for which let
e x e cu tio n issue. A n appropriate judgment will be entered. D O N E this 29th day of September, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE
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